THE EVENTS IN EAST PAKISTAN, 1971
 


Preface
Part I:  Introduction
Part II: Outline of Events in East Pakistan
           1-25 March, 1971
           25-March-18 December, 1971
Part III: Legal Position under Pakistan Law
Part IV: Legal Position under International Penal Law
Part V: Right of Self-determination in International Law
Part VI: The Role of the United Nations
Part VII: The Role of India
Summary of Conclusions

The Role of the United Nations

 

The inaction of the United Nations Organisation in face of the East Pakistan crisis has been widely commented upon. For some it is proof of the impotence of the organisation. The simple answer to this is that the United Nations cannot, by its nature, be more effective than the members who comprise it. It provides a machinery through which the nations of the world can act, if they have the will to do so.

The events in East Pakistan could have been dealt with by the United Nations either as gross violations of human rights, or as a threat to international peace, or both.


Violations of Human Rights

The earlier parts of this Study have shown that the events in East Pakistan involved gross violations of human rights. These violations began in March 1971 and continued until Pakistan's defeat in December, but the United Nations did not take any action to prevent them. The Secretary-General, on his own initiative, launched a humanitarian relief programme. No United Nations organ would consider the human rights violations in East Pakistan, in spite of appeals by India and by Non-Governmental Organisations. When the Security Council was finally seized of the question in December, it refused to consider the origins of the situation but dealt only with the India-Pakistan conflict.

What authority does the United Nations have to deal with gross violations of human rights? What procedures and organs could have been utilised to deal with the human rights violations in East Pakistan? To what extent were these procedures and organs utilised? What implications does the United Nations 'response to the East Pakistan situation have in terms of the United Nations' adequacy to deal with future situations of this kind? Are new procedures or organs desirable?

The United Nations Charter establishes as one of the Organisation's basic purposes 'promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as torace, sex, language or religion' (Article I (3. In Article 56 'All Members pledge themselves to take joint and separate action in cooperation with the Organisation for the achievement' of these purposes.

On the other hand, Article 2 (7) states that except for enforcement measures by the Security Council' Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter. ..'. As a consequence of Article 2 (7), the United Nations for many years has avoided dealing with violations of human rights in specific states.

The General Assembly, however, in Resolution 2144 (XXI) of October 26, 1966, called upon the Economic-and Social Council and the Commission on Human Rights 'to give urgent consideration to ways and means of improving the capacity of the United Nations to put a stop to violations of human rights wherever they may occur'. The Commission on Human Rights in Resolution 8 (XXIII) of March 16, 1967, invited the Sub-Commission on Prevention of Discrimination and Protection of Minorities 'to bring to the attention of the Commission any situation which it has reasonable cause to believe reveals a consistent pattern of violations of human rights and fundamental freedoms, in any country, including policies of racial discrimination, segregation and apartheid, with particular reference to colonial and other dependent territories'. The Commission also authorised the Sub-Commission in making such a recommendation to prepare a report 'containing information on violations of human rights and fundamental freedoms from all available sources'. The Economic and Social Council approved these decisions by the Commission in Resolution 1235 (XLII) of June 6, 1967.

In addition, the Economic and Social Council in Resolution 1503 (XLVIII) of May 27, 1970, established procedures for the review of communications sent by individuals and groups alleging the violation of human rights. The Sub-Commission, which will make the initial review of the communications, in Resolution 1 (XXIV) of August 13, 1971, established the rules of admissibility of communications. These special procedures respecting the review of communications do not derogate from the general authority of the Economic and Social Council, the Commission and the Sub-Commission to study independently of these procedures situations which reveal a consistent pattern of violations of human rights on the basis of all available information.

The United Nations has decided, by virtue of these resolutions, that gross--violations of human rights are not exclusively within the domestic jurisdiction of states and, therefore, Article 2 (7) does not apply. Any of the organs responsible for promoting human rights - the General Assembly, ECOSOC, the Commission on Human Rights, and the Sub-Commission on the Prevention of Discrimination and Protection of Minorities - had the authority and the duty to consider the reports of human rights violations in East Pakistan.
 

Threat to International Peace

In addition to the general exception to Article 2 (7), in cases revealing a consistent pattern of violations of human rights there is a specific exception in the closing words of Article 2 (7) : ' ...but this principle shall not prejudice the application of enforcement measures under Chapter VII. ' Chapter VII is entitled' Action with Respect to Threats to the peace, Breaches of the Peace and Acts of Aggression'  and comprises Articles 39-51. Any action to be taken under Chapter VII must be taken by or under the authority of the Security Council.


Possible Action by the Security Council

Pursuant to its primary responsibility under Article 24 for maintaining international peace and security, the Security Council could have investigated the crisis under Article 34 as 'a situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuation of the. .. situation is likely to endanger the maintenance of international peace and security '.

Equally, any member of the United Nations could have brought the 'situation' to the attention of the Security Council under Article 35, or the Secretary-General could have done so under Article 99.

If the Security Council had met to consider the situation, its first duty under Article 39 would have been to determine whether there existed 'any threat to the peace, breach of the peace or act of aggression' and is so, determine what recommendations to make or what measures to take to maintain or restore international peace or security.

The Security Council did not, in fact, meet until after international hostilities had broken out in December. Hindsight now establishes that there was a threat to peace, but no great foresight was required in order to recognise this threat at the time. Particularly was this so after the Secretary-General's Note to the Security Council of July 20, 1971, in which he drew attention to three features of the situation which previous experience had shown to present grave dangers to peace, namely:

(1) the violent emotions aroused by the persecution of religious or linguistic groups;

(2) the conflict between the principle of territorial integrity and seIf-determination of peoples; and

(3) the long-standing tension between India and Pakistan.

In his memorandum, the Secretary-General indicated the futility of treating the relief aspects of the situation alone and implied that the Security Council should undertake measures to prevent the outbreak of armed conflict:

'In the light of the information available to me, I have reluctantly come to the conclusion that the time is past when the international community can continue to stand by, watching the situation deteriorate and hoping that relief programmes, humanitarian efforts and good intentions will be enough to turn the tide of human misery and potential disaster. I am deeply concerned about the possible consequences of the present situation, not on/y in the humanitarian sense, but a/so as a potential threat to peace and security and for its bearing on the future of the United Nations as an effective instrument for international co-operation and action. It seems to me that the present tragic situation, in which humanitarian, economic and political problems are mixed in such a way as almost to defy any distinction between them, presents a challenge to the United Nations as a whole which must be met. Other situations of this kind may well occur in the future. If the Organisation faces up to such a situation now, it may be able to develop the new skill and the new strength required to face future situations of this kind. ...The United Nations, with its long experience in peace keeping and with its varied resources for conciliation and persuasion, must, and should, now play a more forthright role in attempting both to mitigate the human tragedy which has a/ready taken place and to avert the further deterioration of the situation.'1

It is difficult to resist the conclusion that if the Security Council had met before December 1971 to consider the situation they would have determined that it constituted a threat to the peace. (As no international violence had occurred, it could hardly have determined that there was a 'breach of the peace' or an' act of aggression' pace India's contention in a later debate in the Third Committee that the flow of refugees across the border constituted a 'civilian invasion '.)

If the Security Council had so determined it could, notwithstanding the domestic nature of the dispute, have taken under Chapter VII either non-military measures under Article 41 (including, severance of economic relations, of communications, and of diplomatic relations) or 'such action by air, sea, or land forces as may be 'necessary to maintain or restore international peace and security'.

Any such decision would, however, have required under Article 27 (3) an affirmative vote of seven members including the concurring vote of the permanent members. It was, of course, the impossibility of reaching agreement among the permanent members which was responsible for the inaction of the Security Council.

Even if agreement had been possible, it must be recognised that measures of the kind envisaged under Articles 41 and 42 are not necessarily best suited to achieving the objects which the situation called for, namely the protection of the different sections of the population of East Pakistan against gross violations of human rights, and the prevention of outside interference in the internal dispute, without supporting or favouring one side or the other to that dispute.

Before taking any action under Articles 41 and 42, the Security Council may also under Article 40 'call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable '. These could include such measures as sending a fact-finding committee, or observer groups, or a peace-keeping force. As this Article is in Chapter VII, such provisional measures could have been taken without the consent of the Pakistan Government, but in practice it is unlikely that any such force would be sent without the consent of the government of the country concerned and, in a case of this kind, of the leaders of the insurgent forces or liberation army.

The Security Council could also, under Article 36, have recommended 'appropriate procedures and methods of adjustment' with a view to the pacific settlement of the dispute or situation. The procedures and methods which the Security Council could have recommended under this Article would include procedures for negotiation or mediation as well as the measures open to it under Article 40.


Possible Measures by the General Assembly

The General Assembly has a general power under Article 10 to discuss any matters within the scope of the Charter and, subject to Article 12, to make recommendations to member states, to the Security Councilor both. (Article 12 bars the General Assembly from making any recommendation while the Security Council is exercising its functions in respect of the dispute or the situation; as we have seen, that limitation did not apply.)

There is also a similar power in respect of matters relating to international peace and security under Article II (2).

Under Article 14 'the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations '.

These purposes and principles include (Article I (3)), 'to achieve international cooperation. .. in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion'.

It may be noted in passing that the fact that Article 14 authorises the General Assembly to act in this way indicates that a situation involving a gross violation of human rights within a state should not be considered one which is 'essentially' within the jurisdiction of the state concerned, if it impairs the general welfare or friendly relations among nations.

The General Assembly could, therefore, have made recommendations either:

(1) generally, under Article 10; or

(2) if they had determined that there was a threat to international peace or security, under Article II; or

(3) if they had determined that the violations of human rights occurring in East Pakistan were likely to impair the general welfare or friendly relations among nations, under Article 14.

The actions which they could have recommended under these Articles would include those open to the Security Council, such as a fact-finding committee or observer groups or a peace-keeping force.

It may be that the General Assembly could also have acted under Article 55, which provides that:

'With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

...(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.'

Under Article 56, 'all Members pledge themselves to take joint and separate action in cooperation with the Organisation for the achievement of the purposes set forth in Article 55 '.
 

Committee on the Elimination or Racial Discrimination

As was seen in Part IV of this Study, many of the violations of human rights committed both against Bengalis and Biharis appear to have fallen within the terms of the International Convention on the Elimination of All Forms of Racial Discrimination. A procedure is available for the consideration of' communications' from individuals or groups claiming to be victims of violations or from State Parties.

The Convention provides for a Committee on the Elimination of Racial Discrimination which consists of eighteen experts who serve in their personal capacity. The Committee reviews reports submitted every two years by the states parties to the Convention and may request additional information from the states parties. Furthermore, the Convention provides that 'if a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee'. If  the dispute between the two states parties is not resolved, an ad hoc Conciliation Commission may be established which will investigate the situation and make 'such recommendations as it may think proper for the amicable solution of the dispute'.

India and Pakistan are both states parties to the Convention. The Committee on the Elimination of Racial Discrimination met twice between the events of March 1971, and December 1971. The Committee considered a report by the Government of Pakistan at its April session and decided the report was inadequate and requested the government to submit additional information. The Committee did not specify in what particular areas the Pakistan report was deficient. Pakistan failed to submit the supplementary report requested for the September session of the Committee. The Committee did not make any mention of this omission in its report to the General Assembly.

No complaint was submitted to the Committee concerning the events in East Pakistan. If any of the states parties had initiated such a complaint it would have brought into being the Conciliation Commission which would have investigated the facts fully and made recommendations, and this Conciliation Commission would have been established even if Pakistan had objected to its creation.
 

Opportunities for Discussion of the Situation in the United Nations

Apart from the power of any Member under Article 35 to bring the situation to the attention of the Security Councilor the General Assembly or the Committee on the Elimination of Racial Discrimination, ample opportunities in fact arose for discussing it.

The situation was first raised in the Social Committee of ECOSOC in July, and at the 51st Plenary Session of ECOSOC the United Nations High Commissioner for Refugees (UNHCR) reported on the refugee problem. The Council decided to refer the report to the General Assembly without debate.

On August 16, 1971, a representative of the International Commission of Jurists, speaking on their behalf and on behalf of 21 other non-governmental organisations, requested the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities to examine the situation in East Pakistan and to make recommendations to the Commission on Human Rights on measures to be taken to protect human rights and fundamental freedoms in East Pakistan. After a short debate the matter was closed without any conclusion being reached.

The matter was also raised by India in September 1971, in the Special Committee on Colonialism, but the Committee decided that since the General Assembly had not classified East Pakistan as a colonial territory, it was not authorised to discuss the situation.

In the Introduction to his report to the General Assembly, the Secretary-General stated his belief that the United Nations had to take some action with regard to the situation in East Pakistan, but he did not specifically suggest any action by the General Assembly. Representatives of several countries mentioned the East Pakistan situation in the general debate in the Assembly. The representative of Guyana (The Hon. Shridath S. Ramphal) proclaimed that human rights were not divisable and asked that it be acknowledged 'that gross violations of human rights wherever they occur in the world are the legitimate concern of the international community; that matters cease to be essentially within the domestic jurisdiction of a state when they give rise to humanitarian issues of such magnitude that the international community must of necessity grapple with them.' The representative of Sierra Leone suggested that an observer team be sent to East Pakistan.

The Third Committee of the General Assembly, which handles the social, cultural and human rights items, decided to consider the humanitarian aspects of the East Pakistan situation. Although the Committee was not supposed to discuss the political aspects, the debate inevitably dealt with these aspects even if in an indirect manner.

The representative of New Zealand, Ambassador John Scott, noted that:

'At the heart of the problem was the desire of the people of East Pakistan for greater control of their own affairs -a problem that could only be solved by negotiations between the Government of Pakistan and those who had been freely elected by the people of East Pakistan as their representatives. If the flow of refugees was to be stopped and war avoided, it was essential that such negotiations should begin; the United Nations and other Governments might be able to help if they were called upon to do so.'2

New Zealand and the Netherlands submitted a draft resolution which included both a paragraph on Pakistan's internal political situation and India-Pakistan relations. The draft resolution appealed to Pakistan 'to intensify its efforts to create conditions which would restore the climate of confidence indispensable for the promotion of voluntary repatriation' and appealed to India 'to continue to promote an atmosphere of good-neighbourliness which would diminish tensions in the area and encourage the refugees to return to their homes'.3 Even these indirect suggestions were too strong for most states. Ambassador Abdulrahim Farah of Somalia' questioned the advisability 'of including these paragraphs' since they were contro versial and might divert the Committee's attention from the main objective, which was essentially humanitarian.4

The resolution finally adopted by the General Assembly (Resolution 2790 (XXVI), December 6, 1971) 'Urges all Member States in accordance with the purposes and principles of the Charter of the United Nations to intensify their efforts to bring about conditions necessary for the speedy and voluntary repatriation of the refugees to their homes' and notes that the return of the refugees 'requires a favourable climate which all persons of goodwill should work to bring about in a spirit of respect for the principles of the Charter of the United Nations'. The wording of this Resolution illustrates the cautious and unrealistic attitude in which most member states viewed the situation in East Pakistan. The discussion in the Third Committee took place just a few weeks before the outbreak of the India-Pakistan war, yet provisions on the political factors were considered too 'controversial'. Ironically, the General Assembly adopted the Resolution several days after the full-scale war begun. Events had overtaken the decision by the General Assembly.


Security Council and General Assembly Attempt to Stop the lndia-Pakistan War

The Security Council finally became seized of the situation in the Indian subcontinent on December 4, when nine members called for a meeting on 'the deteriorating situation which has led to armed clashes between India and Pakistan'. In the Security Council Ambassador Y. A. Malik of the Soviet Union vetoed two draft resolutions calling for immediate cease-fire and withdrawal of troops on the grounds that they failed to stress the need for a political settlement in East Pakistan. He criticised members of the Council for viewing the situation as a purely India-Pakistan conflict. He insisted that the Council must consider the origin of the conflict - the Pakistan army's use of repression:

'It is entirely clear that if the military administration of Pakistan had not interrupted the talks with the lawful representatives of the Pakistani people and had not carried out its mass repressions, the Security Council and the world community would not have to be dealing with consideration of the question of the domestic crisis in East Pakistan and its international consequences.' 5He asserted that: 'Under the Charter the Security Council unquestionably has the right to examine the causes of the emergence of dangerous situations that, threaten international peace and security. The Security Council likewise has the right to call upon a State or States to take steps to eliminate the causes involved and to adopt measures to prevent such cases from aggravating the international situation and resulting in the threat of direct military conflict.' 6After the Soviet vetoes, the Council referred the matter to the General Assembly under the 'Uniting for Peace' resolution.

On December 7, the General Assembly promptly adopted by a vote of 104 in favour, 11 against, with 10 abstentions, a resolution calling for an immediate cease-fire and withdrawal of troops. The overwhelming vote reflected the disapproving attitude by most states to the secession of Bangladesh from Pakistan and India's armed intervention. Many of them were no doubt anxious to discourage dissident minorities in their own states from taking the same course.  Certain states, however, criticised the Security Council for not taking action earlier which might have averted the crisis:

'From the very start, as jar back as April of this year, there was an imminent threat to international peace and security, justifying prompt action by the Security Council. There could have been recourse to the  various alternative means contemplated in and provided for by Article 33 of the Charter. Why, then, did the Security Council adopt the Nelson touch, and avert its gaze from the clouds that were gathering over the eastern portion of the subcontinent? It will be the historian's task to seek the answer to that question, in order to save this Organisation from a similar dereliction of duty in the future.' 7

' ...all of us together, as Member States of the United Nations, also bear our share of responsibility for insufficient engagement and commitment in defining and ascertaining the real causes of the crisis, and for failing to take effective measures to overcome them in time. Here I have especially in mind the passive attitude and immobilism of the Security Council when it received the memorandum of the Secretary-General of 20 July, in which the Secretary-General pointed out that the developments in the Indian subcontinent constituted a danger for peace in that area.' 8

The United States on December 12 requested that the Security Council be reconvened due to India 's 'defiance of world opinion' in not respecting the General Assembly's call for cease-fire and withdrawal of troops. Ambassador George H. Bush stated that Pakistan's use of force in March' does not ... justify the actions of India in intervening militarily and places' in jeopardy the territorial integrity and political independence of its neighbour Pakistan'.9 The draft resolutions at the second series of Council meetings on the whole showed greater attention to the need for a political settlement between Pakistan and the elected leaders of East Pakistan, but India's military success in Bangladesh made these proposals academic. After the surrender of the Pakistan forces in Bangladesh and a defacto cease-fire in both Pakistan and Bangladesh, the Security Council adopted a resolution demanding strict observance of the cease-fire and withdrawal of troops 'as soon as practicable'. The Council did not insist on India withdrawing its troops from Bangladesh immediately since it recognised its usefulness in protecting from reprisal the persons who collaborated with the Pakistan Government.


The Lessons of East Pakistan for the United Nations

The inability of the United Nations to have any significant impact on the events in East Pakistan suggests that the Organisation should reconsider some of its basic attitudes towards situations of this kind. The most serious omission of the United Nations was its failure to act upon the authenticated reports of massive killings and other gross violations of human rights committed by the Pakistan army in East Pakistan. The United Nations had recognised in the abstract that respect for human rights is an essential condition for the maintenance of international peace and security. As recently as 1970 the General Assembly declared that' universal respect for and 'full exercise of human rights and fundamental freedoms and the elimination of the violation of those rights are urgent and essential to the strengthening of international security, and hence resolutely condemns all forms of  oppression, tyranny and discrimination, particularly racism and racial discrimination, wherever they occur'.10It is submitted that the United Nations should act upon this principle in particular situations where governments are conducting massive violations of human rights against their people. The Security Council should be convened immediately to take measures which will persuade the government concerned to discontinue the repression.  The Council will be more likely to be able to reduce tensions and create conditions for a pacific settlement of the dispute before neighbouring states have become involved. More speedy procedures are also needed for investigating situations of this kind. On April 5, 1972, a representative of the International Commission of Jurists urged the United Nations Commission on Human Rights to seek the authority to be able to hold emergency sessions to deal with urgent situations involving the imminent threat of wilful destruction of human life on a massive scale.


Footnotes:

1Italics added. UN document S/10410, pp. 2, 3-4.

2A/C.3/SR.1877, November 19, 1971, pp. 13-14.

3A/C.3/L.1885, November 18, 1971, paras. 3 and 4.

4A/C.3/SR.1879, November 22, 1971, p. 3.

5S/PV.1606, December 4,1971, p. 133-135.

6lbid., pp. 127 and 128-130.

7Italics added. Ambassador H. S. Amerasinghe (Ceylon), A/PV.2003, December 7, 1971, p. 11.

8Ambassador L. Mojsov (Yugoslavia), ibid., p. 57.

9S/PV. 1611, December 12, 1971, p. 11.

10General Assembly Resolution 2734 (XXV), Declaration on the Strengthening of International Security, December 16, 1970, para. 22.


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